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ACCA《公司法與商法》真題及答案
ACCA商法涵蓋了商業(yè)關(guān)系中的各種法律問題，包括合同法、公司法、公司行為、保險法、勞動法、知識產(chǎn)權(quán)法、稅法、工商管理法等。下面是小編收集整理的ACCA《公司法與商法》真題及答案，歡迎大家借鑒與參考，希望對大家有所幫助。
ACCA《公司法與商法》真題及答案 1
Question:
(a) In relation to the English legal system, explain the meaning of:
(i) criminal law;
(ii) civil law.
(b) Explain the hierarchy of courts dealing with criminal law.
Answer:
(a) (i) Criminal law relates to conduct which the State considers with disapproval and which it seeks to control. Criminal law involves the enforcement of particular forms of behaviour, and the State, as the representative of society, acts positively to ensure compliance. Thus, criminal cases are brought by the State in the name of the Crown and cases are reported in the form of Regina v … (Regina is simply Latin for ‘queen’ and case references are usually abbreviated to R v ...). In criminal law the prosecutor prosecutes a defendant (or ‘the accused’) and is required to prove that the defendant is guilty beyond reasonable doubt. The Companies Act (CA) 006 sets out many potential criminal offences, which may be committed by either the company itself, or its officers or other individuals. An example of this which may be cited is s.993, which relates to the criminal offence of fraudulent trading and applies to any person, not just directors or members, who is knowingly a party to the carrying on of a business with the intent to defraud creditors. The potential penalty on conviction is imprisonment for a maximum period of 10 years, or a fine or both.
(ii) Civil law, on the other hand, is a form of private law and involves the relationships between individual citizens. It is the legal mechanism through which individuals can assert claims against others and have those rights adjudicated and enforced. The purpose of civil law is to settle disputes between individuals and to provide remedies; it is not concerned with punishment as such. The role of the State in relation to civil law is to establish the general framework of legal rules and to provide the legal institutions to operate those rights, but the activation of the civil law is strictly a matter for the individuals concerned.
Contract, tort and property law are generally aspects of civil law.
Civil cases are referred to by the names of the parties involved in the dispute, for example, Smith v Jones. In civil law, a claimant sues (or ‘brings a claim against’) a defendant and the degree of proof is on the balance of probabilities. In relation to the CA 006, the duties owed to companies by directors set out in ss.171–177 may be cited as examples of civil liability, and directors in breach are liable to recompense the company for the consequences of their failure to comply with those duties, as is set out in s.178.
In distinguishing between criminal and civil actions, it has to be remembered that the same event may give rise to both. For example, where the driver of a car injures someone through their reckless driving, they will be liable to be prosecuted under the Road Traffic legislation, but at the same time, they will also be responsible to the injured party in the civil law relating to the tort of negligence. Similarly, a director may fall foul of both the criminal regulation of fraudulent trading (s.993 CA 006) as well as breaching their duty to the company under one of the provisions of ss.171–177 CA 006.
(b) The essential criminal trial courts are the magistrates’ courts and Crown Courts. In serious offences, known as indictable offences, the defendant is tried by a judge and jury in a Crown Court. For less serious offences, known as summary offences, the defendant is tried by magistrates; and for ‘either way’ offences, the defendant can be tried by magistrates if they agree but the defendant may elect for jury trial.
Criminal appeals from the magistrates go to the Crown Court or to the Queen’s Bench Division (QBD) Divisional Court ‘by way of case stated’ on a point of law or that the magistrates went beyond their proper powers.
Further appeal is to the Court of Appeal (Criminal Division) and then to the Supreme Court on a significant point of law.
Question：
In relation to the law of contract,explain the rules relating to：
(a)acceptance of an offer;
(b)revocation of an offer.
Answer：
This question requires an explanation of the rules relating to the acceptance and revocation of offers in contract law.
(a)Acceptance is necessary for the formation of a contract. Once the offeree has accepted the terms offered, a contract comes into effect. Both parties are bound： the offeror can no longer withdraw their offer, nor can the offeree withdraw their acceptance. The rules relating to acceptance are：
(i)Acceptance must correspond with the terms of the offer. Thus, the offeree must not seek to introduce new contractual terms into their acceptance (Neale v Merrett (1930)).
(ii)A counter-offer does not constitute acceptance (Hyde v Wrench (1840)). Analogously, a conditional acceptance cannot create a contractual relationship (Winn v Bull (1877)).
(iii)Acceptance may be in the form of express words, either oral or written. Alternatively, acceptance may be implied from conduct (Brogden v Metropolitan Railway Co (1877)).
(iv)Generally, acceptance must be communicated to the offeror. Consequently, silence cannot amount to acceptance (Felthouse v Bindley (1863)).
(v)Communication of acceptance is not necessary, however, where the offeror has waived the right to receive communication. Thus in unilateral contracts, such as Carlill v Carbolic Smoke Ball Co (1893), acceptance occurred when the offeree performed the required act. Thus, in the Carlill case, Mrs Carlill did not have to inform the Smoke Ball Co that she had used their treatment.
(vi)Where acceptance is communicated through the postal service, then it is complete as soon as the letter, properly addressed and stamped, is posted. The contract is concluded even if the letter subsequently fails to reach the offeror(Adams v Lindsell (1818)). However, the postal rule will only apply where it is in the contemplation of the parties that the post will be used as the means of acceptance. If the parties have negotiated either face to face, in a shop, for example, or over the telephone, then it might not be reasonable for the offeree to use the post as a means of communicating their acceptance and they would not gain the benefit of the postal rule.
The postal rule applies equally to telegrams (Byrne v Van Tienhoven (1880)). It does not apply, however, when means of instantaneous communication are used (Entores v Miles Far East Corp (1955)).
In order to expressly exclude the operation of the postal rule, the offeror can insist that acceptance is only to be effective on receipt (Holwell Securities v Hughes(1974)). The offeror can also require that acceptance be communicated in a particular manner. Where the offeror does not insist that acceptance can only be made in the stated manner, then acceptance is effective if it is communicated in a way no less advantageous to the offeror (Yates Building Co v J Pulleyn& Sons (1975)).
(b)Revocation is the technical term for the cancellation of an offer and occurs when the offeror withdraws their offer. The rules relating to revocation are：
(i)An offer may be revoked at any time before acceptance. However, once revocation has occurred, it is no longer open to the offeree to accept the original offer (Routledge v Grant (1828)).
(ii)Revocation is not effective until it is actually received by the offeree. This means that the offeror must make sure that the offeree is made aware of the withdrawal of the offer, otherwise it might still be open to the offeree to accept the offer(Byrne v Tienhoven (1880)).
(iii)Communication of revocation may be made through a reliable third party. Where the offeree finds out about the withdrawal of the offer from a reliable third party, the revocation is effective and the offeree can no longer seek to accept the original offer (Dickinson v Dodds (1876)).
(iv)A promise to keep an offer open is only binding where there is a separate contract to that effect. Such an agreement is known as an option contract, and it must be supported by separate consideration for the promise to keep the offer open.
(v)In relation to unilateral contracts, i.e. a contract where one party promises something in return for some action on the part of another party, revocation is not permissible once the offeree has started performing the task requested (Errington v Errington & Woods (1952).
ACCA《公司法與商法》真題及答案 2
Question
In relation to the TORT OF NEGLIGENCE, explain:
�。╝）the standard of care owed by one person to another;
（b）remoteness of damage.
Answer
�。╝）The law does not require unreasonable steps to be taken to avoid breaching a duty of care. In legal terms, a breach of duty of care occurs if the defendant fails:
‘…… to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do. （Blyth v BirminghamWaterworks Co （1856））
Thus the fact that the defendant has acted less skilfully than the reasonable person would expect will usually result in a breach being established. This is the case even where the defendant is inexperienced in their particular trade or activity. For example, a learner driver must drive in the manner of a driver of skill, experience and care （Nettleship v Weston （1971））. However, the standard of care expected from a child may be lower than that of an adult （Mullin v Richards （1998））.
Clearly the degree, or standard, of care to be exercised by such a reasonable person will vary depending on circumstances, but the following factors will be taken into consideration in determining the issue:
（i）The seriousness of the risk
The degree of care must be balanced against the degree of risk involved if the defendant fails in their duty. It follows, therefore, that the greater the risk of injury or the more likely it is to occur, the more the defendant will have to do to fulfil their duty. The degree of care to be exercised by the defendant may be increased if the claimant is very young, old or less able bodied in some way. The rule is that you must take your victim as you find him （this is known as the egg-shell skull rule）.
In Haley v London Electricity Board （1965） the defendants, in order to carry out repairs, had made a hole in the pavement. The precautions taken by the Electricity Board were sufficient to safeguard a sighted person, but Haley, who was blind, fell into the hole, striking his head on the pavement, and became deaf as a consequence. It was held that the Electricity Board was in breach of its duty of care to pedestrians. It had failed to ensure that the excavation was safe for all pedestrians, not just sighted persons. It was clearly not reasonably safe for blind persons, yet it was foreseeable that they might use the pavement.
The degree of risk has to be balanced against the social utility and importance of the defendants activity. For example, in Watt v Hertfordshire CC （1954）, the injury sustained by the plaintiff, a fireman, whilst getting to an emergency situation, was not accepted as being the result of a breach of duty of care as, in the circumstances, time was not available to take the measures which would have removed the risk.
�。╥i）Cost and practicability
Any foreseeable risk has to be balanced against the measures necessary to eliminate it. If the cost of these measures far outweighs the risk, the defendant will probably not be in breach of duty for failing to carry out those measures （Latimer v AEC Ltd （1952））.
（iii）Skilled persons
Individuals who hold themselves out as having particular skills are not judged against the standard of the reasonable person, but the reasonable person possessing the same professional skill as they purport to have （Roe v Minister of Health （1954））.
�。╞）The position in negligence is that the person ultimately liable in damages is only responsible to the extent that the loss sustained was considered not to be too remote. The test for remoteness was established in The Wagon Mound （No 1） （1961）.
The defendants negligently allowed furnace oil to spill from a ship into Sydney harbour, which subsequently caused a fire, which spread to, and damaged, the plaintiffs wharf. Although the defendants were held to be in breach of their duty of care, they were only liable for the damage caused to the wharf and slipway through the fouling of the oil. They were not liable for the damage caused by fire because damage by fire was at that time unforeseeable （the oil had a high ignition point and it could not be foreseen that it would ignite on water）.
The test of reasonable foresight arising out of The Wagon Mound clearly takes into account such things as scientific knowledge at the time of the negligent act. The question to be asked in determining the extent of liability is, is the damage of such a kind as the reasonable [person] should have foreseen？ This does not mean that the defendant should have foreseen precisely the sequence or nature of the events.
This is illustrated in the case of Hughes v Lord Advocate （1963）, where employees of the Post Office, who were working down a manhole, left it without a cover but with a tent over it and lamps around it. A child picked up a lamp and went into the tent. He tripped over the lamp, knocking it into the hole. An explosion occurred and the child was burned. The risk of the child being burned by the lamp was foreseeable. However, the vaporisation of the paraffin in the lamp and its ignition were not foreseeable. It was held that the defendants were liable for the injury to the plaintiff. It was foreseeable that the child might be burned and it was immaterial that neither the extent of his injury nor the precise chain of events leading to it was foreseeable.
ACCA《公司法與商法》真題及答案 3
Question:
Mezza Co is a large food manufacturing and wholesale company. It imports fruit and vegetables from countries in South America, Africa and Asia, and packages them in steel cans, plastic tubs and as frozen foods, for sale to supermarkets around Europe. Its suppliers range from individual farmers to Government run cooperatives, and farms run by its own subsidiary companies. In the past, Mezza Co has been very successful in its activities, and has an excellent corporate image with its customers, suppliers and employees. Indeed Mezza Co prides itself on how it has supported local farming communities around the world and has consistently highlighted these activities in its annual reports.
However, in spite of buoyant stock markets over the last couple of years, Mezza Co’s share price has remained static. It is thought that this is because there is little scope for future growth in its products. As a result the company’s directors are considering diversifying into new areas. One possibility is to commercialise a product developed by a recently acquired subsidiary company. The subsidiary company is engaged in researching solutions to carbon emissions and global warming, and has developed a high carbon absorbing variety of plant that can be grown in warm, shallow sea water. The plant would then be harvested into carbon-neutral bio-fuel. This fuel, if widely used, is expected to lower carbon production levels.
Currently there is a lot of interest among the world’s governments in finding solutions to climate change. Mezza Co’s directors feel that this venture could enhance its reputation and result in a rise in its share price. They believe that the company’s expertise would be ideally suited to commercialising the product. On a personal level, they feel that the venture’s success would enhance their generous remuneration package which includes share options. It is hoped that the resulting increase in the share price would enable the options to be exercised in the future.
Mezza Co has identified the coast of Maienar, a small country in Asia, as an ideal location, as it has a large area of warm, shallow waters. Mezza Co has been operating in Maienar for many years and as a result, has a well developed infrastructure to enable it to plant, monitor and harvest the crop. Mezza Co’s directors have strong ties with senior government officials in Maienar and the country’s politicians are keen to develop new industries, especially ones with a long-term future.
The area identified by Mezza Co is a rich fishing ground for local fishermen, who have been fishing there for many generations. However, the fishermen are poor and have little political influence. The general perception is that the fishermen contribute little to Maienar’s economic development. The coastal area, although naturally beautiful, has not been well developed for tourism. It is thought that the high carbon absorbing plant, if grown on a commercial scale, may have a negative impact on fish stocks and other wildlife in the area. The resulting decline in fish stocks may make it impossible for the fishermen to continue with their traditional way of life.
Required:
Discuss the key issues that the directors of Mezza Co should consider when making the decision about whether or not to commercialise the new product, and suggest how these issues may be mitigated or resolved.
(17 marks)
Answer:
(Solution note: Question 5 can be answered in a variety of ways and the suggested answer below is indicative. Credit will be given for reasonable answers considering alternatives or additions to the two issues discussed below.)
The directors’ overarching aim should be to maximise Mezza Co’s long-term value and thereby maximise the value to its shareholders. Hence any decision should be made with this aim as the primary objective. However, the directors should also try to minimise the negative consequences resulting from the implementation of the project, taking into account the company’s responsibility to its stakeholders.
The first key issue to consider is whether the new project would add value to the company. Initially it would appear that the investment into the new venture may be beneficial to the company. The product would be meeting market needs for a substantial period of time, as a tool in tackling climate change. It would possibly enhance the company’s corporate reputation in helping to tackle the negative impact of climate change. Furthermore, it may enable the research subsidiary company to undertake future research and development projects in similar products.
However, whether the positive factors described above lead to an increase in the value of the company warrants further discussion and investigation. The company needs to assess the likely income the investment will generate and take account of the inherent risk of the venture. Presumably this is a new product and therefore it is likely that the uncertainty and risk to income flows will be significant. The directors should also take account of the fact that their remuneration package contains share options and these may induce them to act in an overly risky manner, where they would benefit from increasing share prices but not lose if the share price falls. This may not be beneficial to the shareholders or other stakeholders who do not hold such options.
Due diligence procedures for the project need to be undertaken before the decision is made. The company’s directors need to undertake a full assessment of how realistic the estimates of revenues and income are likely to be. They would also need to assess the likelihood of competitors and alternative products which may affect the future sales of the product. A full investigation of the uncertainties and risks needs to be undertaken, possibly using techniques such as sensitivity, probability and project duration analysis. Risks need to be accounted for in the assessment of the likely value added. This would be of particular importance if the directors are to convince the shareholders and other stakeholders that they are not taking unacceptable levels of risk. Realistic time scales need to be determined of how long it would take to commercialise the product, perhaps by considering how other companies undertook similar projects. The adequacy of the expertise and infrastructure required by the company needs to be assessed.
The second key issue for the directors to consider is the location of the plant product. There are a number of factors which would make the location ideal for Mezza Co. The location provides the ideal conditions for the plant to grow in the quantity required for commercialisation. The relationship with the government is strong and the government wants to develop new industries, hence the project is likely to be seen in a positive light. It is possible therefore that many legal and administrative barriers would be reduced to enable production to commence quickly. Finally, Mezza Co has the infrastructure it needs in place and therefore set-up costs are likely to be significantly lower. These factors would provide financial benefits for Mezza Co and may make the investment viable.
However, there are ethical and environmental concerns in using this area for the project. It may be perceived that the relationship with the government is too close and this will prevent proper scrutiny by the government. The livelihood of the affected fishermen needs to be considered, as well as the impact on the wildlife and the environment. Going ahead with the project may result in a significant negative impact on Mezza Co’s reputation and possibly contradicts with the company’s (and the directors’) values. Therefore, the dilemma that the directors face is that the project would be perceived as helping the global environment but damaging the local environment.
The directors could take a number of steps to reduce or eliminate this negative impact. Given that the fishermen do not have a significant ‘voice’ or power, Mezza’s board could try to hide the issue, but it is unlikely that their personal values would allow such a situation. The directors could speak with the leaders of the fishermen’s community to explain the benefits and consequences on the fishermen, possibly offering the fishermen priority to the new jobs that the project would create. They could influence, and work with the government, to part-develop the area for tourists and also leave areas for the fishermen to continue their activity. This may be possible if the whole area is not needed for plant cultivation at once. These additional wealth enhancing opportunities may convince the fishermen of the merits of the project. The company could continue looking for alternative areas to cultivate the crop and possibly engage in research and development to create crops which are not harmful to the fish stock and the wildlife. However, these steps would cost money and Mezza Co needs to balance revenues it is likely to receive against the additional costs.
In terms of the relationship with the government, Mezza Co may be able to demonstrate that it worked with the government to improve the livelihood of the fishermen. It could also ensure that it follows due process in terms of legal and administrative requirements, even though this would possibly delay the product’s launch.
Mezza Co needs to consider the likely positive benefits against the costs, both direct and to the wider community, before taking on the project. It needs to consider the impact on long term value creation, and corporate reputation would be a major factor in determining this. Although Maienar’s government may try to approve the project quickly, Mezza Co should consider the full impact of the proposed project, alternatives and consequences, and try to manage the entire process to ensure that there isn’t an overall negative impact on the company’s reputation.
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